Rulings Regarding Family Burial Plots and Visitors

August 30 2013:

Sharing this information I received from Hallie Stadvec at my State Rep's. office (Marlene Anielski):

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Hallie Stadvec | Legislative Aide
Office of State Representative Marlene Anielski | District 6
Ohio House of Representatives | 77 S. High St. Columbus, OH 43215
Phone: (614) 644-6041| Hallie.Stadvec@ohiohouse.gov

"Briefly, it does not appear that Ohio’s courts have directly addressed this issue, but court rulings regarding the rights of burial plot owners suggest that a court might recognize the right of a descendants family to visit the grave.

Private Cemeteries:

Public cemeteries may be operated by a township, municipal corporation, or union formed to operate a cemetery. Private cemeteries are those operated by persons, churches, religious societies, or fraternal organizations. Ohio law requires all persons, churches, religious societies, fraternal, organizations, and political subdivisions of this state to register with the Division of Real Estate in the Department of Commerce any cemeteries they own, operate, or maintain. Family cemeteries and cemeteries in which there have been no internments during the previous 25 years, however, are exempt from these requirements. The Revised Code defines “family cemetery” as containing the human remains of persons , at least three-fourths of whom have a common ancestor or who are the spouse or adopted child of that common ancestor.

The owner of a cemetery plot enjoys certain legal rights. While the Revised Code does not seems to address this issue directly, the courts have ruled that a person who buys burial rights in a cemetery acquires and easement-that is, a right to use the property for certain purposes. This easement might be an express easement, which is described in the contract for the purchase of the lot.

Alternatively, the courts have recognized an implied easement for the necessary uses of a burial plot. These rights may include: the right to be buried in the plot; the right to erect a monument; the right to be compensated if the cemetery’s owner damages or otherwise interferes with the grave; and the right to ensure that the cemetery is lawfully run and maintained.

A plot owner’s surviving family members sometimes may assert these rights on their own behalf or on behalf of the deceased.

It appears that Ohio’s courts have not specifically considered whether persons have a right to visit a family member’s grave at a cemetery. However, the courts have acknowledged that a gravesite is traditionally used as a monument for the benefit of the deceased’s family and friends. Further, a court has ruled that the owner of a family burial plot may not prevent mourners from visiting the grave. Given these precedents, a court may find that the easement that arises from the sale of a burial plot includes the right to keep the grave accessible to visitors."